Fennell v. North Carolina Department of Crime Control & Public Safety

551 S.E.2d 486, 145 N.C. App. 584, 2001 N.C. App. LEXIS 745

• Court: Court of Appeals of North Carolina
• Decided: August 21, 2001
• Docket: COA00-824
• Status: Published

Opinions

HUNTER, Judge.

Norwood and Annie Fennell (collectively, “plaintiffs”) appeal from a decision and order of the North Carolina Industrial Commission (“Commission”). In its decision, the Commission reversed the decision and order of the deputy commissioner and dismissed plaintiffs’ Tort Claims Act, N.C. Gen. Stat. § 143-291 et. seq. (1999), claim against the State Highway Patrol (“Highway Patrol”). On appeal, plaintiffs assign error to the Commission’s reversal of the deputy commissioner’s decision. After a careful review of the record and briefs, the decision and order of the Commission is affirmed.

The record discloses evidence which tended to show on 30 August 1993, Trooper Richard L. Stephenson (“Trooper Stephenson”), of the Highway Patrol, was on duty in his patrol car conducting radar surveillance of the speed of traffic on Interstate 85 in Randolph County, North Carolina. At approximately 7:00 p.m., Trooper Stephenson clocked a northbound blue Pontiac Grand Am automobile traveling at a speed of seventy miles an hour in a zone with a posted speed limit of sixty-five. Trooper Stephenson pursued the vehicle, activated his blue lights, and pulled the vehicle over to the shoulder.

The driver of the vehicle was Kenneth Fennell (“Fennell”), plaintiffs’ son. Before Trooper Stephenson had the opportunity to fully position his patrol car, Fennell exited his vehicle and began walking towards Trooper Stephenson’s. Immediately, Trooper Stephenson exited his patrol car and met Fennell between the two cars. Fennell inquired as to why he had been stopped, and Trooper Stephenson indicated that he had been stopped for speeding. Trooper Stephenson then asked Fennell to sit in the right front passenger seat of his patrol car, and Fennell complied.

Next, Trooper Stephenson asked Fennell for his operator’s license, and Fennell produced a student ID. When Trooper Stephenson again asked for an operator’s license, Fennell produced a New York license. Thereafter, Trooper Stephenson contacted dispatch to determine if Fennell had a valid North Carolina or New York license. Dispatch advised Trooper Stephenson that Fennell did not have a valid North Carolina license, and the information was inconclusive as to Fennell’s New York license. After obtaining this information, Trooper Stephenson issued Fennell a citation for not having a valid North Carolina operator’s license.

After determining that Fennell’s car was a rental and sensing Fennell’s nervousness, Trooper Stephenson asked Fennell whether he had any illegal drugs, contraband, or weapons in his vehicle, to which Fennell responded that he did not. Trooper Stephenson then asked Fennell if he could search the vehicle, and Fennell verbally consented. Notably, Trooper Stephenson had written consent forms in his patrol car that he normally asked motorists to sign, but he failed to secure a written consent on this occasion. Trooper Stephenson began by searching the passenger side of the vehicle. Upon placing his left hand under the front passenger seat, Trooper Stephenson discovered a black bag, removed it, and unzipped it.

When he had the bag approximately half open, Trooper Stephenson recognized the barrel of a gun. Trooper Stephenson asked Fennell about the gun, and Fennell immediately struck Trooper Stephenson with his fists twice between the eyes. Upon being hit, Trooper Stephenson dropped the black bag, and the two men began to struggle. During the struggle, Trooper Stephenson attempted to use his night stick and mace, but both were either dropped or knocked out of his hand. Trooper Stephenson then threw Fennell to the ground and attempted to gain control of him. At this point during the struggle, Fennell attempted to grab Trooper Stephenson’s service revolver. When Trooper Stephenson realized he was not going to be able to subdue Fennell, he released him and stood upright.

After the two separated, Fennell grabbed the black bag and unzipped it. At this juncture, Trooper Stephenson removed his service revolver and warned Fennell that if he continued to reach for the gun, he would shoot. Despite the warning, Fennell continued to reach in the bag and began to remove the gun. When Trooper Stephenson saw the butt of the gun, he fired his first shot. Nevertheless, Fennell continued to remove the gun from the bag, thus Trooper Stephenson fired a second shot. Still, Fennell continued to clear the gun from the bag, and Trooper Stephenson then fired a third and fourth shot in rapid succession. These shots caused Fennell to spin to his right, where he fell with his face to the ground. As Fennell fell to the ground, his gun flew out of his hand and landed approximately twelve feet from his body. Fennell died at the scene.

Upon taking an inventory of the area, police officers, who had arrived at the scene, found a black bag, a night stick, nail clippers, an AA battery, pepper mace, a set of scales, a plastic bag with crack cocaine, two prophylactics, a nylon bag with a mirror and a calculator inside, a plastic bag containing $1,200.00 in cash, shell casings, a set of keys, assorted coins, and a gun. Subsequent testing of the scales and gun established no usable finger prints.

On 26 May 1995, plaintiffs, on behalf of their son, filed this Tort Claims Act, N.C. Gen. Stat. § 143-291 et. seq., claim with the Commission alleging negligence on the part of the Highway Patrol, inter alia, for the actions of Trooper Stephenson. Initially, plaintiffs’ case was heard by Deputy Commissioner George T. Glenn II. During the proceedings before the deputy commissioner, certain inconsistencies developed as to Trooper Stephenson’s account of the events — for instance, during a video deposition, Trooper Stephenson testified that he was twenty to twenty-five feet away from Fennell when he fired his first shot, however, during the hearing before the deputy commissioner, Trooper Stephenson testified that he was five to six feet away when he fired his first shot. Due to inconsistencies in Trooper Stephenson’s testimony and the physical evidence, Deputy Commissioner Glenn questioned Trooper Stephenson’s credibility. At the conclusion of plaintiffs’ evidence, Deputy Commissioner Glenn dismissed plaintiffs’ claims against all defendants, except the Highway Patrol.

Then, on 30 June 1998, Deputy Commissioner Glenn filed his decision and order in this matter. In his decision, Deputy Commissioner Glenn found that Fennell did not have a gun and did not attempt to enter a gun into the situation; Trooper Stephenson’s testimony was not credible; Trooper Stephenson did not intend to use the amount of force he did in fact use; Trooper Stephenson’s use of deadly force was unjustified, excessive, and negligent; and the gun found at the scene was placed there by someone other than Fennell. Based on these findings, the deputy commissioner concluded that Trooper Stephenson’s use of deadly force was negligent, and his negligence was the proximate cause of Fennell’s death. Therefore, Deputy Commissioner Glenn ordered the Highway Patrol to pay plaintiffs $100,000.00 for Trooper Stephenson’s negligence.

The Highway Patrol appealed to the Full Commission. On 5 August 1998, the Highway Patrol filed a motion for dismissal, or in the alternative summary judgment, based on collateral estoppel. The Full Commission reviewed this matter and filed its decision and order, with detailed findings and conclusions, on 3 March 2000. In its decision and order, the Full Commission reversed the decision and order of Deputy Commissioner Glenn and denied the Highway Patrol’s motion for dismissal, or summary judgment. Significantly, in its decision and order, the Full Commission found:

25. Although inconsistencies exist between Trooper Stephenson’s testimony at the hearing before the Deputy Commissioner and the statements Trooper Stephenson gave following the incident, Trooper Stephenson’s testimony regarding his actions as they relate to the shooting of [] Fennell is uncon-tradicted and is accepted as credible.

26. When Trooper Stephenson shot [] Fennell, he acted intentionally. Trooper Stephenson believed that [] Fennell had a gun and that he was in danger of being shot by [] Fennell. Trooper Stephenson not only intended to shoot, but intended to inflict deadly force, and did so in fact by causing the death of [] Fennell. Therefore, [] Fennell’s death was the result of an intentional act and cannot be found to have been the result of negligent conduct. Plaintiffs failed to meet their burden of proving Trooper Stephenson was negligent.

Therefore, the Full Commission concluded:

3. When Trooper Stephenson shot [] Fennell, he not only intended to shoot, but intended to inflict deadly force. . . .

4. . . . The death of [] Fennell was the result of Trooper Stephenson’s intentional actions and cannot be found to be the result of negligent conduct. Therefore, plaintiffs’ claim must be denied.. . .

5. The Industrial Commission does not have jurisdiction over claims arising from intentional acts. . . .

Based on its findings of fact and conclusions of law, the Full Commission reversed Deputy Commissioner Glenn’s decision and order and denied plaintiffs’ claim. Plaintiffs now appeal to this Court.

Plaintiffs assign error to the Commission’s reversal of the deputy commissioner’s decision. Specifically, plaintiffs challenge the Commission’s findings that: (1) Trooper Stephenson was credible, and (2) Trooper Stephenson acted intentionally, not negligently. After a careful review of the record, we find that competent evidence supports the Commission’s findings, and the Commission’s findings support its conclusions and decision. Therefore, we reject plaintiffs’ assignment of error.

Under the Tort Claims Act, “when considering an appeal from the Commission, our Court is limited to two questions: (1) whether competent evidence exists to support the Commission’s findings of fact, and (2) whether the Commission’s findings of fact justify its conclusions of law and decision.” Simmons v. N.C. Dept. of Transportation, 128 N.C. App. 402, 405-06, 496 S.E.2d 790, 793 (1998). In a proceeding under the Tort Claims Act, “[findings of fact by the Commission, if supported by competent evidence, are conclusive on appeal even though there is evidence which would support a contrary finding.” McGee v. N.C. Dep’t of Revenue, 135 N.C. App. 319, 324, 520 S.E.2d 84, 87 (1999); see also Bailey v. Dept. of Mental Health, 272 N.C. 680, 683-84, 159 S.E.2d 28, 30-31 (1968). “On appeal, this Court ‘does not have the right to weigh the evidence and decide the issue on the basis of its weight. The Court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.’ ” McGee, 135 N.C. App. at 324, 520 S.E.2d at 87 (quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).

First, plaintiffs contend that the responsibility of weighing a witness’ credibility lies solely with the deputy commissioner; hence, the Commission erred in reversing Deputy Commissioner Glenn’s credibility determination regarding Trooper Stephenson, and making findings contrary to those made by the deputy commissioner. We are unpersuaded by plaintiffs’ argument.

“[T]he Commission is the ultimate fact-finder on appeal and is authorized to make findings and conclusions contrary to those made by the deputy commissioner.” McGee, 135 N.C. App. 319, 324, 520 S.E.2d 84, 87. In fact, under the Tort Claims Act, the Commission has statutory authority on appeal to “amend, set aside, or strike out the decision of the hearing commissioner and may issue its own findings of fact and conclusions of law.” N.C. Gen. Stat. § 143-292 (1999). Furthermore:

In reviewing the findings made by a deputy commissioner . . ., the Commission may modify, adopt, or reject the findings of fact found by the hearing commissioner. Watkins v. City of Wilmington, 290 N.C. 276, 280, 225 S.E.2d 577, 580 (1976). It is the Commission that ultimately determines credibility, whether from a cold record or from live testimony. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 413 (1998)[, reh’g denied, 350 N.C. 108, 532 S.E.2d 522 (1999)]. This State’s Supreme Court in Adams, overruling Sanders v. Broyhill Furniture Industries, 124 N.C. App. 637, 478 S.E.2d 223 (1996), disc. review denied, 346 N.C. 180, 486 S.E.2d 208 (1997), stated:

“Consequently, in reversing the deputy commissioner’s credibility findings, the full Commission is not required to demonstrate, as Sanders states, ‘that sufficient consideration was paid to the fact that credibility may be best judged by a first-hand observer of the witness when that observation was the only one.’ ”

Adams, 349 N.C. at 681, [509] S.E.2d at 413. Thus, the Commission is the ultimate fact-finder on appeal and is authorized to make findings and conclusions contrary to those made by the deputy commissioner.

McGee, 135 N.C. App. 319, 324, 520 S.E.2d 84, 87.

At bar, Trooper Stephenson was the only witness to the events from start to finish. Three drivers did witness the events to an extent as they transpired, but none of the witnesses saw the events in their entirety. Moreover, the drivers saw Fennell strike Trooper Stephenson and the resulting struggle; yet, none of the witnesses noticed a gun in Fennell’s hands. However, a gun was found approximately twelve feet from Fennell’s body, which supported Trooper Stephenson’s account of the events. Additionally, the police officers’ inventory of the scene after the shooting supported Trooper Stephenson’s and the drivers’ accounts of a struggle between the two men.

While there may be some contrary evidence to the Commission’s finding, primarily in the form of inconsistencies in Trooper Stephenson’s accounts of the events and the physical evidence, the Commission, in an acceptable exercise of its discretion, gave more weight and credibility to the testimony of Trooper Stephenson than did Deputy Commissioner Glenn. Furthermore, although contrary evidence exists, some competent evidence of record supports the Commission’s finding as to Trooper Stephenson’s credibility, and therefore, the finding is conclusive on appeal.

In furtherance of their contention, plaintiffs rely on this Court’s opinion in Brewington v. N.C. Dept. of Correction, 111 N.C. App. 833, 433 S.E.2d 798 (1993), for the proposition that, “the responsibility of weighing the credibility of the witnesses lies solely with the hearing commissioner.” Id. at 839, 433 S.E.2d at 801. However, plaintiffs’ reliance is misguided, as the above quote is merely dicta in our previous opinion.

In Brewington, a Tort Claims Act action, this Court affirmed a decision of the Commission, which affirmed and adopted a decision and order of a deputy commissioner, without the Commission making its own findings of fact and conclusions of law. Id. In doing so, we held that the Commission, when hearing appeals of claims from a hearing commissioner under the Tort Claims Act, may make its own findings of fact and conclusions of law, but that it is not required to do so. Id. We based our determination in part on the express language of N.C. Gen. Stat. § 143-292, which states, in pertinent part, the Commission “may issue its own findings of fact and conclusions of law.” Significantly, a credibility determination by a deputy commissioner was not at issue in Brewington.

In the case sub judice, a deputy commissioner’s credibility determination is at issue. We reiterate that under the Tort Claims Act, the Commission has the authority on appeal to “amend, set aside, or strike out the decision of the hearing commissioner . . . .’’N.C. Gen. Stat. § 143-292. Certainly, the language of § 143-292 — “amend, set aside, or strike out” — includes the authority for the Commission to reverse a deputy commissioner’s credibility determination. Therefore, Brewington is distinguished.

Next, plaintiffs contend that the Commission erred in reversing Deputy Commissioner Glenn’s finding of negligence, and making findings contrary to those made by the deputy commissioner — particularly, the Commission’s finding that Trooper Stephenson acted intentionally. Again, plaintiffs’ argument lacks merit.

As stated in McGee, the Commission is the ultimate fact-finder on appeal in a Tort Claims Act action. See McGee, 135 N.C. App. at 324, 520 S.E.2d at 87. Based on our review of the record, competent evidence supports the Commission’s findings that Trooper Stephenson acted intentionally when he shot Fennell; Trooper Stephenson believed Fennell had a gun and that he was in danger of being shot; and Trooper Stephenson intended to inflict deadly force. Consequently, the Commission’s findings are conclusive on appeal.

It is well-settled that the Tort Claims Act does not permit recovery for intentional injuries. See Jenkins v. Department of Motor Vehicles, 244 N.C. 560, 94 S.E.2d 577 (1956); N.C. Gen. Stat. § 143-291 et. seq. Only claims for negligence are covered. Id. Therefore, the Commission does not have jurisdiction over claims arising from intentional acts, such as the ones at issue here. Accordingly, we hold that competent evidence supports the Commission’s findings of facts, and thus, those findings are conclusive on appeal. Thus, we affirm the Commission’s findings of fact, and decision and order.

Finally, in light of our affirming the Commission’s decision and order, the Highway Patrol’s cross-assignment of error as to collateral estoppel based on a federal court decision in this same case is deemed moot.

Thus, the Commission’s decision and order is

Affirmed.

Judge MARTIN concurs. Judge HUDSON concurs in the result in a separate opinion.